EDMONDSON, J.
¶ 1 This proceeding involves a request for an extraordinary writ that is recast as appeal from an order in a guardianship that adjudicated the wards' selection of counsel and adjudicated a motion concerning unsupervised visitation and selection of a guardian. This proceeding also involves two requests for extraordinary relief that were made during the appeal.
¶ 2 Foster Calvin Berry
¶ 3 Jan filed in the District Court a verified petition seeking an emergency special guardianship. The petition related results from examinations or assessments performed on Foster and Daughtrey. Photocopies of Foster's and Daughtrey's August 2011 "Durable
¶ 4 On Jan's verified petition, an emergency special guardianship hearing was held before the Honorable Kurt G. Glassco, District Judge. Jan testified that: (1) She knew that a law firm had represented her parents and had prepared an estate plan; (2) She knew that Edward Jones Company was the trustee of her parents' trust
¶ 5 At the hearing, counsel informed the court that the caregiver for Foster and Daughtrey had "been reported to Adult Protective Services" resulting in "an on-going, open investigation." Counsel also argued that Daughtrey's son was prohibited by law from being named a guardian or serving in a fiduciary capacity for either of his parents. Jason Fields, from the firm of Riseling and Rhodes, appeared for both Foster and Daughtrey. Robin Owens appeared on behalf of Jan. Fields argued that there was no objection to Jan as an emergency special guardian of Foster and Daughtrey, but that she should not be named as guardian of their property. He argued that whatever estate planning the Berrys had previously put in place should remain without alteration by the court or a guardian. He argued that the Berrys had been scheduled to sign legal documents the day before the hearing, and that it was the opinion of the Berrys' financial advisor and an attorney at his firm concerning the Berrys' capacity: "they know what's going on."
¶ 6 Jan was appointed Special Guardian for her parents. The court also ordered that the powers of attorney previously executed by Foster and Daughtrey be "held in abeyance pending further Court Order." The order stated that the Special Guardianship would remain in force until 9:30 A.M. on Oct. 24, 2011, subject to further orders of the court. Id. The "Letters of Special Guardianship" were filed in September 2011, and limited the guardianship duties to management and control of certain aspects of the persons and estates of Foster and Daughtrey.
¶ 7 Four days after the hearing Clifton Baker and Steven Wyers, attorneys at law, entered appearances on behalf of Foster and Daughtrey as their nominated attorneys, and Foster and Daughtrey objected to the Special Guardianship. Their pleading requested an order suspending the Order and Letters of Guardianship naming Jan as guardian until a hearing to determine the capacity of the wards, and in the alternative to appoint either a guardian selected by the wards or a neutral guardian.
¶ 8 A hearing was held before the Honorable Millie Otey, Special Judge of the District Court. Jason Fields appeared for Foster and Daughtrey and argued that if they had the capacity to make the decision to hire new attorneys, then that would be their choice for counsel. He argued that because the court had previously determined that
¶ 9 At the hearing, counselors Baker and Wyers appeared for Foster and Daughtrey as nominated attorneys and requested that the rights of the guardian be "suspended or limited" until an evidentiary hearing be held. Attorney Baker explained that James Berryhill, Foster and Daughtrey's nephew, and James' wife, Anita, brought Foster and Daughtrey to his office seeking relief from the guardianship. After hearing argument and testimony from witnesses, Judge Otey specified that the Berrys be returned to their home after having been removed by the Berryhills, and that the Berrys be provided with health care at home twenty-four hours a day, seven days a week.
¶ 10 The judge also ordered that Foster and Daughtrey's son could have supervised visitation with his parents, and that the Berryhills could have supervised visitation with Foster and Daughtrey. Judge Otey also suspended all powers of attorney until termination or reinstatement by another judge who was assigned to hear the controversy. She also ordered that the Berrys have access to any of their funds in order for them to be able to sustain their lifestyle. She ordered that keys to the home be given to the guardian, agent for the guardian, the wards, and the home healthcare company. She ordered that the Berryhills not be given a key to the home. For much of this hearing the Berryhills had been outside the courtroom and no counsel had entered an appearance on their behalf, but at one point Mr. Baker informed the court what the Berryhills would testify to if called as witnesses. Tr. at 55. Mr. Wyers was then directed to go out into the hallway to determine if the Berryhills still possessed financial documents they had removed from the Berrys' home to a location in the State of Texas. Tr. at 57. The judge directed counsel to have the Berryhills come into the hearing where the judge ordered them to return the documents.
¶ 11 Judge Otey entered a temporary protective order that required a person employed in the home by the Berrys, Dee Penney, to have no contact with the Berrys until the assigned Judge made a determination on her employment in the home. The judge also ordered neuropsychological testing with a report to be made to the judge assigned to the controversy. After discussion of counsel, the judge ordered counsel for the special guardian, then present counsel for the Berrys, and nominated counsel for the Berrys to each provide a list of four names of professionals who customarily perform such tests for the judge to select a name for the person to perform the tests.
¶ 12 The day after the hearing Baker and Wyers filed a motion for an emergency hearing "on a clarification and interpretation of the Court's orders, for clarification of the amount and extent of the Guardian and/or her Agent, to control the Wards' lives, and to define the extent or limitations on Wards to continue their lives; consideration of removal of the Agent; for consideration of a Co-guardian located in the state who can act with authority for the best interests of the Wards; and for attorney fees on the prosecution and conclusion of this unnecessary Motion to protect the interests of the Wards." O.R. at 68, 70-71. The allegations of the motion included that a caregiver was employed by Jan for her parents, and that this agent for Jan impermissibly restricted the wards from moving freely whenever and wherever they choose, and that other restrictions imposed by Jan and this agent were undue burdens and restrictions on their "lifestyle of freedom." O.R. at 70.
¶ 13 On October 7, 2011, Jan filed a petition for the appointment of a general guardian for her father and mother. On October 21, 2011, James and Anita Berryhill filed a Petition For Appointment of Special and Limited Co-Guardians for the purpose of them being named guardians for Foster and Daughtrey. Exhibits to the application were "Nomination of Co-Guardians" signed by Foster and Daughtrey that named James and Anita as the co-guardians of their persons and estates. The nominations of co-guardians were dated October 21, 2011. The attorney filing the Petition was Clifton Baker. O.R. at 115, 119. One week later a Notice of Substitution Of Counsel was filed
¶ 14 The record on appeal contains an Order Appointing General Guardian stating that on October 24, 2011, a hearing in the District Court was held and that appearances were made by Daughtrey along with several lawyers. The order states that testimony was heard and the pleadings were examined. The adjudications and determinations of the assigned trial judge, Judge Terry Bitting, included but are not limited to the following: that proper notice of the proceeding had been given, that Foster and Daughtrey were residents of Tulsa County, that Jan had standing to petition for the appointment of a guardian, the Court had previously appointed a Special Guardian of the Person and Estate of the Wards, the evidence was clear and convincing of incapacity of the wards as to all aspects of daily living, testimony of Daughtrey included that Foster could not attend due to a fall resulting in cracked ribs and a painful condition requiring rest, that the health and safety of the wards would be seriously affected unless action was taken by the court, the wards were subject to deception, undue influence, and exploitation as to their financial resources, and that a general guardian should be appointed for their person and property because no less restrictive alternative was available at that time to provide the wards with necessary care and assistance. The order states that "By agreement of the parties and their counsel, Christopher I. Mansfield is appointed General Guardian of the Person and Estate of the Wards." O.R. at 148. The order required the wards to meet with a specified person and that person's staff for examinations. The order required the Berryhills to deliver to the general guardian "all tangible and intangible property belonging to the Wards which is currently held by the Berryhills."
¶ 15 All other pending issues were ordered to be held in abeyance until the report of the examinations was filed with the court. The protective order remained in effect and the supervised visitation remained in effect. The trial judge also determined that it was necessary to order that "The parties will abide by the Judicial Order of Proper Conduct and shall not discuss the Guardianship, financial matters or make derogatory remarks about the parties to the Wards."
¶ 16 Judge Bitting's Order for Proper Conduct included directions to the relatives of the Wards to not argue or fight in the presence of the wards. They were also directed to keep their visits short and pleasant with the Wards and not to criticize other relatives and the litigation or discuss any other topic likely to cause the wards to become agitated.
¶ 17 A hearing commenced in April 2012 with the assigned judge directing the lawyers in the case to limit their motions to raising facts and law in a professional manner, and she directed them to stop making personal attacks in motions filed with the court. This hearing was on a motion brought by the general guardian to dismiss allegedly improperly filed claims and for legal fees. The Berrys were not present. Attorney Baker testified that he had visited with the wards in a "private attorney-client relationship conference" the day before the hearing and that they knew that a hearing was being held. Attorney Wyers, also in a representative capacity for the wards, stated that James Berryhill had contacted his office to state that the wards had declined to attend due to the actions of the guardian. Attorney Baker stated that he had not been stopped from meeting with the wards. A recess occurred, a telephone call was made, and upon the court reconvening the Berrys were in attendance.
¶ 18 The guardian testified that various loving family members had different perspectives on what was best for the Berrys and that the Berrys were "in the proverbial tug-of-war." He testified that the Berrys could stay in their home with 24-hour assistance "but it isn't going to be a true, practical outcome if everybody can't stop aggravating and upsetting them." He reiterated that "just because people are not adult enough to put their personal feelings aside,
¶ 19 Judge Bitting noted that both the wards were present and that she wanted the wards to testify as to any lawyers they wanted to represent them. The transcript of this hearing then shows long arguments from the lawyers giving their respective views on what they perceived to be the facts of the case including unsworn allegations concerning the mental status of the wards, the use of their funds by various individuals, objections to the mental examination reports, whether Baker and Wyers also represented the Berry's son David in a "trust action" that had occurred in the District Court simultaneous to the guardianship, time for the attorneys to prepare for a hearing on the wards' selection of counsel, and whether the court should appoint a guardian ad litem for the wards. The Court ordered that a hearing be scheduled on the issue of the wards' selection of counsel.
¶ 20 One week later the parties were back in court for a hearing on the selection of counsel by the wards. Counsel for the Berryhills and nominated counsel for the Berrys argued that the status of the guardianship should be addressed first. The Court disagreed, and attorney Baker was sworn as a witness and testified. He testified that his representation of the Berrys commenced on September 29, 2011, after having previously met them two to three days earlier. He testified that James Berryhill contacted his office to determine if he handled guardianship cases, and then on that day the Berryhills drove the wards to his law office and introduced the Berrys to him. He testified that when he met with the Berrys he was informed that they were subjects in a guardianship proceeding. He testified that he had "concern" because estate planning documents had been prepared by a different attorney and signed by the wards several weeks prior to his meeting with the wards, but that he saw no reason to contact and inform that lawyer of his representation of the wards because Baker's representation was in a guardianship, an issue he considered to be separate from estate planning.
¶ 21 Baker testified that James and Anita Berryhill gave him a check for $5,000 on September 26, 2011, to initially retain him for his legal services for the Berrys. He testified that the source of the funds was from "Mr. Berryhill's or Mrs. Berryhill's checking account." Tr. May 30, 2012, p. 53. He testified that he had been informed by the Berryhills that they wanted a guardianship for the Berrys. Baker testified that the Berrys indicated that they did not want a guardianship. Tr. at p. 54. However, he also testified that the Berrys thought they should be under a guardianship. Tr. at p. 55-56. Baker testified that in his opinion it was not a conflict of interest to be paid from two people seeking to be named guardians while representing wards who objected to the guardianship. Tr. May 30, at p. 54. He testified that he had filed a petition for guardianship on behalf of the Berryhills and then did a "substitution of counsel." Tr. at p. 56. He testified that he represented the Berryhills "pro bono" and that he did not recall who had paid the filing fee. Tr. at p. 57. He testified that his representation of the Berryhills was "for one day." Tr. at p. 57.
¶ 22 Baker testified that he also represented the Berrys' son, David, in an action "to challenge the trust" of his parents, "not trying to break it" but "just challenging the most recent version of the trust." Tr. at 58. He testified that while he would not represent the Berrys concerning their estate plan because they already had a lawyer for that, it was permissible for him to represent someone else with regard to the Berrys' estate plan in the context of challenging or seeking to change that plan with regard to the Berry's trust. Trans. at p. 57-58. He stated that David did not pay him legal fees, he represented David pro bono, and that he did not probably keep records of the time he spent working on David's case.
¶ 23 At the hearing on July 11, 2012, Dr. Bianco testified he administered reading,
¶ 24 Daughtrey testified she did not know who was in charge of her trust, and that it could be 20 years since she named a trustee. Tr. at 58, 60-61. (Evidence was presented in the hearings concerning documents signed by Foster and Daughtrey a few weeks before the guardianship for a change in a corporate trustee.) She stated she did not know whether Baker had represented someone else in litigation involving her trust and that she would "be surprised" if "he wouldn't work with us about our trust." Tr. at 62. She testified that if Baker worked with someone else concerning her trust it was without her knowledge or permission. Tr. at 62.
¶ 25 When questioned whether she had a lawyer, she pointed to Mr. Baker but appeared to have difficulty stating his name. Tr. at 63-64. After being told his name, she stated that Baker and Wyers were her lawyers and she wasn't sure whether she had any previous lawyers. She testified she hired Baker three or four years previously. Tr. at 65. When asked by the guardian why she hired Baker, she asked Mr. Baker for assistance in answering the question. Tr. at 66. She testified she hired Baker to do "whatever lawyers do." She testified she was comfortable with Baker, liked him, and wanted him to be her lawyer. She testified the Berryhills were her present guardians. Tr. at 75. She also testified Mansfield was her guardian, and she gave permission to Baker for Mansfield to be her guardian. Tr. at 77. She testified she had caretakers in her home "around the clock" and "They're doing a good job." Tr. at 84. She testified the Berryhills assisted her in finding Mr. Baker and that, when asked if the Berryhills "sit in meetings with you when you met with Mr. Baker," she answered "I think so." Tr. at. 68. She testified she was "not sure" whether the Berryhills participated and spoke during those meetings. Tr. at 68.
¶ 26 Foster Berry had been absent from some of the proceedings due to medical issues but was able to attend a hearing in October 2012. He testified he loved both of his children, Jan and David. He testified his daughter was "very pleasant" and that he had "very fine" relationships with her and David. He testified he became aware of the guardianship that was filed in 2011 "five, six, seven years ago I guess." Tr. at 12. Foster testified he remembered going to Baker's law office but he could not remember why. Id. He testified he remembered meeting Baker's law partner, but could not remember what was discussed. Id. When asked by Baker if he remembered going over guardianship papers with him, Foster testified, "Yes." He testified he preferred James Berryhill and his wife Anita as his guardians instead of his daughter Jan. Foster also testified he did not remember who drove him to Baker's office and that he did not remember meeting Baker at his office. Tr. at 20.
¶ 27 Baker asked Foster a leading question concerning whether Foster wanted Baker and his partner to represent him, an objection thereto was sustained; and then after an additional question with Baker explaining to opposing counsel that Baker was asking Foster to identify who he wanted as counsel, Foster testified that he wanted "You and your partner." Tr. at 22. Then on cross-examination Foster testified that he did not know Baker's partner. Tr. at 23.
¶ 28 Foster testified he remembered hiring Mr. Riseling "probably eight or nine years ago" but would not disagree if someone said he hired him in 1988. Tr. 26. He testified he did not know why he had not hired Riseling for the guardianship. He testified he hired Baker on the suggestion of his niece.
¶ 30 Jason Fields testified he had represented the Berrys at previous hearings due to his employment with Riseling and Rhodes, and he had not assisted with planning, filing, or "putting together" the guardianship by Jan Harris. Tr. at 57. He testified the firm asked him to contact the Berrys and he had a conversation with Mrs. Berry Tr. at 62. He testified Mr. Rhodes of the firm spoke with Mr. Berry. Tr. at 64. He stated he had an appointment for the Berrys to meet with him at his office and on the same day they went to meet with Mr. Baker instead. Tr. at 65. He testified he had argued against the guardianship; and in the alternative, that if the court imposed a guardianship it should be in accordance with the Berrys' estate planning documents. Id.
¶ 31 Additional testimony was given by Clifton Baker. He testified he had filed an entry of appearance for David Berry in the guardianship proceeding for both Baker and Wyers. Tr. at p. 71. See O.R. at p. 281. Baker's entry of appearance stated that David was the son of the wards, beneficiary of their trusts, designated as attorney in fact in the wards' power of attorney, and was a petitioner in two related and specified causes, and that David requested that all correspondence and pleadings be directed to his counsel, Baker and Wyers. O.R. at 281. Baker signed both the appearance and the certificate of mailing. Concerning this appearance, Baker testified that "I don't have any memory of doing it or why." Tr. at 72. Baker testified he never considered himself as representing David Berry in the guardianship case, and he did not know of any conflict of interest between David Berry and his parents. He testified that, if the court approved his nomination as lawyer for the Berrys, then he would be willing to file a withdrawal of his representation for David. Tr. at 73.
¶ 32 The trial judge's decision was filed in January 2013. The order stated that a Holly hearing was held on May 30, July 30, August 17, and October 31, 2012, and that the judge had considered the testimony. The judge rejected Baker and Wyers as the wards' choice of counsel, and left the wards represented by attorneys they had employed several years earlier for estate planning, the law firm of Riseling & Rhodes.
¶ 33 An application for an extraordinary writ was filed in this Court and review of the judge's order was sought. The application for an extraordinary writ requested relief from two adjudications made by the trial judge that were memorialized in the form of a single order. The first involved the choice of lawyers made by the wards. The second was a challenge to an order which restricted the access of the parents to certain individuals including members of their family.
¶ 34 Several statutes defining orders as appealable focus on the nature and substance of the order,
¶ 36 The first decision of the trial court rejected Baker and Wyers as the wards' choice of counsel, and left the wards represented by attorneys they had employed several years earlier for estate planning, the law firm of Riseling & Rhodes. In Towne v. Hubbard, 1999 OK 10, 977 P.2d 1084, we explained that an appeal from an order adjudicating a ward's choice of counsel was an appeal from an interlocutory order pursuant to § 721 as an appeal from an order affecting a substantial right: "An appeal may be taken from the following judgments or orders of the district court: ... 10. From any other judgment, decree or order of the court in a probate cause, or of the judge thereof, affecting a substantial right." 58 O.S.2011 § 721(10).
¶ 37 Section 721 refers to an order in a "probate cause" and a guardianship is one type of probate cause.
¶ 38 We have recast an application for extraordinary relief to a petition in error when a party complained that a ward did not receive a constitutionally proper evidentiary hearing on the issue of a ward's choice of counsel, and when the application for extraordinary relief was filed within the time to commence an appeal.
¶ 39 The choice-of-counsel order is an interlocutory appeal made appealable by the nature of the trial court's adjudication; i.e., a choice-of-counsel adjudication affecting a substantial right. However, appeal from an order adjudicating one's choice of counsel does not make the other unrelated issues in that order also appealable.
¶ 40 In Conterez v. O'Donnell,
2002 OK 67, ¶ 10, 58 P.3d at 762 (note and emphasis omitted).
This language does not allow all issues and disputes in a cause or controversy to become part of a subsequent interlocutory appeal in the cause. The statute cited, § 952(a), expressly states that the Supreme Court "may reverse, vacate or modify judgments ... and in the reversal of such judgment may reverse, vacate or modify any intermediate order involving the merits of the action, or any portion thereof." 12 O.S.2011 § 952(a) (emphasis added and material omitted). The quoted language from Conterez refers to appellate review of orders anterior to judgment that are reviewed in an appeal from a judgment. Similar language appears in State v. One Thousand Two Hundred Sixty-Seven Dollars, where the Court also relied upon
¶ 41 If the substance of an interlocutory order contains both adjudications of issues that are immediately appealable and adjudications on other issues that are not immediately appealable, then only that part of the order adjudicating immediately appealable claims may be reviewed on an immediate appeal of the interlocutory order. For example, in Whig Syndicate, Inc. v. Keyes, the trial court stated that it was entering a "judgment" on five issues, one of which was whether class action relief was proper.
¶ 42 Jason Fields testified that he appeared on behalf of Foster and Daughtrey because of his association with the firm of Riseling and Rhodes and at the direction of attorney Rhodes after his conversation with Foster. Baker and Wyers state that they have been the attorneys for Foster and Daughtrey pursuant to an agreement their clients signed after the guardianship was created and their wishes expressed in testimony to the court.
¶ 43 In In re Towne, we held that a prospective ward is entitled to an attorney of his own choice unless the trial court concludes after an evidentiary hearing that the attorney is not independent or has a conflict of interest.
¶ 44 The trial court's findings included the following. The Special Guardianship was created on September 23 and three days later the Berryhills responded to that proceeding by transporting the Berrys to the firm of Baker & Wyers which had been selected by the Berryhills. The Berryhills transported Daughtrey to a bank to remove
¶ 45 The $5,000 retainer paid from Anita Berryhill's funds was in addition to $15,000 also collected as a retainer by Baker and Wyers. In May of 2012, James and Anita Berryhill filed an application in the trial court for reimbursement from the Berrys claiming that they had spent their own funds on behalf of the Berrys, including the $5,000 paid to retain Baker and Wyers and a $2,000 loan to Foster in order for him to open an account at a credit union. O.R. at 321-325. This application states that Mr. Wyers met with the Berryhills at a credit union where $182,191.26 was deposited into Anita Berryhill's account "with the Wards listed as beneficiaries if anything were to happen to Anita Berryhill." O.R. at 322. The application also states that both Mr. Wyers and Mrs. Berry were with the Berryhills at the credit union, and upon direction from Mr. Wyers an additional retainer of $15,000 was paid to Mr. Wyers for legal services. Id. The Berryhills state that when the special guardian, the Berrys' daughter, discovered the credit union accounts and made an attempt to "acquire" the funds, they then transferred most of the funds to a Bank of America account. They state that when they transferred funds to Bank of America, Foster told the Berryhills to reimburse themselves for the initial $5,000 payment to Baker and an additional $2,000 used to open a credit union account in Foster's name. Anita Berryhill states she advanced from her own funds weekly amounts to Daughtrey. She also stated she advanced her own funds to cover checks written by David Berry for the benefit of his parents. She claimed that she had given money to David at the direction of Daughtrey and she sought recovery for these funds. She also claimed she had spent her own funds for the benefit of the Berrys, including money spent on meals for the Berrys, mailing packages of the Berrys' financial documents which had been in her possession to the guardian and counsel for the special guardian, and medication she bought for Foster. Id. Many of the amounts for which she sought restitution from the Berrys were based upon expenses which she had alleged to have made prior to the date that Baker and Wyers filed an appearance in the District Court on behalf of the Berryhills and sought a guardianship status for the Berryhills over the Berrys.
¶ 46 The trial court's findings also included the following. Upon notification of the special guardianship, the Berrys were removed from their home by the Berryhills and allegedly taken to the Berryhills' home in Texas. The actions were taken without the court's permission, and without notice to, or permission of, the special guardian. Susan Boyd, R.N., who was managing the Berrys' care pursuant to employment by the special guardian, requested that the Berrys be returned home and an employee of Adult Protective Services made the same request. Judge Otey then ordered that the Berrys be returned to their home, and that the Berryhills return the Berrys' financial documents by sending them to counsel for the special guardian. Judge Otey specifically ordered that keys to new locks on the home be given to the Berrys, their guardian, and care manager, and that a key was not to be given to the Berryhills.
¶ 47 The decision of the trial court further states that "The Court Ordered the Wards' monies returned to the Guardian, which was accomplished with resistance. The need for the Berryhills' communications with wards to continue to be monitored should come as no surprise." O.R. at 664, 670. The decision then states that: "The Berryhills did not fully return all of the funds removed from Daughtrey Berry's account(s)." Id. The court stated that "Particularly concerning to the Court was testimony about funds belonging to the Berrys, being removed from Daughtrey Berry's account(s) and being placed in the name of Anita Berryhill, after knowledge that a Special Guardian was in place and with knowledge and participation of Wards' nominated counsel." Id. at 672.
¶ 48 Additional findings of the court in its decision included the following. Baker appeared before the Honorable Millie Otey on September 27, 2011, "in the capacity of challenging the guardianship." Less than a month later, on October 21, 2011, Baker filed a petition on behalf of the Berryhills for them to be named guardians of both the persons and property of Foster and Daughtrey. We also note that on that same day Baker and Wyers also filed an entry of appearance on behalf of the Berryhills. The court also made a finding that Baker and Wyers had entered an appearance on behalf of Berry's son, David, and Baker testified that he represented David in a contemporaneous proceeding involving the Berrys' trust. Further, "The Court observed that on occasion when the Wards were not present, that when nominated counsel were asked where his clients were, Mr. Baker asked the Berryhills whether the Berrys were coming to court." O.R. at 674.
¶ 49 Nominated counsel, Baker and Wyers rely upon testimony of Foster and Daughtrey that the wards stated that they wanted Baker and Wyers as counsel. The trial court recognized this, but concluded on these facts that Baker and Wyers were not independent, and that the wards lacked the capacity to understand the conflicts of interest and then knowingly waive them. The court's decision noted that the report of Dr. Bianco discussed the wards being subject to "manipulation, undue influence, coercion, deception, duress, harassment and false representation" relating to mental deficits. The trial court stated that: "It was clear from the testimony of witnesses and from the Court's observation of both wards during many hearings that ... Mrs. Berry often did not recall why she was there, even after numerous explanations by the Court ... Both Wards had difficulty in subsequent hearings recalling events close in time to hearing dates ... [and] Mrs. Berry, in particular, was very easily led during testimony and it was evident that she was concerned about giving the `right' answers. She would begin to make statements when other witnesses were testifying and would read from a pad of paper she kept with her." O.R. at 671. Mrs. Berry testified that she was "pretty sure" that she gave Baker permission to agree to Mansfield being the guardian and that he was still her guardian. However, she also testified at the same time that her guardian was "Anita and Jim [Berryhill]."
¶ 50 We have explained that judicial removal of a litigant's choice of counsel in a non-guardianship proceeding is used "under limited circumstances, where honoring the litigant's choice would threaten the integrity of the judicial process."
30 O.S.2011 § 3-107(G)(emphasis added).
The issue whether a ward's choice of counsel may be judicially denied pursuant to § 3-107 based upon a best-interests finding in the absence of a showing that the ward's choice has a conflicting interest or lacks independence is a question that is not before us. The trial court's ruling herein is based solely on a determination that Baker and Wyers had a conflict and lacked independence.
¶ 51 Baker testified at the initial meeting with the Berrys he knew of the guardianship proceeding, and the Berrys did not want a guardianship. May 30, 2012, Tr. at 53, 55. He also testified the Berryhills wanted a guardianship. Id. Tr. at 54. He then testified no conflict of interest existed because the Berrys had changed their original position and they had come to believe that they should have guardians. Id. Tr. at 55-56. Baker testified that at the time he was hired the Berrys did not have a lawyer for the guardianship because the legal representation then being provided by Mr. Rhodes involved estate planning. Tr. at 44.
¶ 52 Baker testified the work Mr. Rhodes performed related to the Berrys' trusts and powers of attorney. Tr. at 40-41. Baker testified he thought it would be improper for him to do estate planning for the Berrys. Tr. at 45. However, although Baker recognized that the Berrys' trust was part of their estate planning, he agreed he appeared on behalf of David in a contemporaneous proceeding for the purpose of challenging part of that trust. The record clearly shows the trust was used to provide funds for the daily needs and wants of the wards, and that Baker and Wyers knew that a guardianship "had been filed" and had directed a $15,000 payment of the Wards' funds to themselves with the assistance of the Berryhills without permission of the special guardian or the guardianship court. The record clearly shows Baker was aware that payments were being made by Anita Berryhill from her own funds for the Berrys, including the $5,000 retainer paid to Baker; further, that he knew that the $5,000 payment was for representing two wards in a guardianship.
¶ 53 In a guardianship proceeding the procedure for payment of compensation to attorneys, guardians ad litem, and persons conducting evaluations is provided by a statute, 30 O.S.2011 § 4-403.
¶ 54 Instead of seeking payment of attorney's fees through the guardianship court, Baker first accepted a $5,000 retainer from Anita Berryhill, and we assume that Baker's knowledge of guardianship law was sufficient for him to know that Anita Berryhill could seek restitution for payments she made on behalf of the wards from funds belonging to the wards that were subject to the guardianship jurisdiction of the District Court. Wyers accompanied or met the Berryhills and the wards at a financial institution and directed that an additional $15,000 retainer be paid to him for the representation provided by Baker and Wyers. The testimony is that the $15,000 was paid from the wards' funds that the Berryhills were trying to keep from being controlled by the special guardian; that is, the Berryhills were admittedly trying to keep the funds from the supervision provided by a guardianship court, and giving themselves supervision over those funds. Baker and Wyers, knowing that a guardianship proceeding was pending, sought and obtained $20,000 as a retainer through checks written by the Berryhills without seeking court approval.
¶ 55 In addition to the financial relationship Baker and Wyers had with the Berryhills, we note that testimony revealed that as the guardianship progressed the wards' views of the guardianship changed from being antagonistic to being completely compliant with the relief requested by the Berryhills in their application. Baker and Wyers executed a contract to represent the Berrys, who said they did not want a guardianship, and three weeks later Baker and Wyers filed an application on behalf of the Berryhills to be named guardians for the Berrys. A ward may certainly change his or her mind in a three-week period. However, the trial court's findings state that Daughtrey, in particular, was easily led and influenced in her views, and that this observation of the trial court agreed with Daughtrey's assessment by Dr. Bianco. Further, the trial court observed that Baker & Wyers' communications concerning events such as the Berrys' appearance at court was through the Berryhills. The evidence was conflicting whether the Berryhills were present when Baker and Wyers were communicating with the Berrys. Baker testified they were not present. Daughtrey testified they were present, and the record shows that they were present when the retainers were paid.
¶ 56 Baker and Wyers also represented David Berry in a proceeding he commenced in the District Court of Tulsa County. David's application was signed by Baker. O.R. at 156, 168. The application sought to vacate an amendment to Foster Berrys' trust, and for a restraining order against the guardian, the Berry's daughter, the firm of Riseling and Rhodes, the Berrys' financial advisor of eighteen years, and the Edward Jones Trust Company. The application sought an order restraining the defendants named therein "from any involvement in the
¶ 57 A separate proceeding was instituted by David concerning Daughtrey's trust. O.R. at 218. The application lists Baker as counsel but it is not signed by Baker. The docket entry for this proceeding shows a similar entry for Baker and Wyers attending the hearing on the motion to dismiss on behalf of David.
¶ 58 Both applications filed by David challenging the amendments to the two trusts state that they are filed on behalf of himself and the Grantors of each of the trusts, Foster and Daughtrey. The applications by David do not specify in what legal capacity he is acting on behalf of his parents.
¶ 59 The appellate record contains an Entry of Appearance filed by David in his parents' guardianship proceeding. The entry is filed a month after he filed his two proceedings challenging the trusts and 2 months prior to the date that the trial court dismissed his actions. The entry of appearance is signed by Baker and states "by and through his legal counsel Clifton Baker and Steven Wyers, attorney at law, ... Movant requests that all further and future correspondence or pleadings be directed to his attention through counsel at the address or telephone number listed below." O.R. at 281. The address and telephone of Baker and Wyers are listed on the appearance.
¶ 60 In the joint brief filed by both nominated counsel and counsel for the Berryhills in this Court, instead of focusing on the findings of the trial court used to show a conflict and a lack of independence, their legal argument is simply that the Berrys had capacity to make a knowing choice and that "Further, there was no evidence of any conflict
¶ 61 We reverse a guardianship order only if it is clearly against the weight of the evidence or contrary to law.
¶ 62 That portion of the order of the District Court which removed retained counsel, Clifton Baker and Steven C. Wyers, as counsel for Foster and Daughtrey for a lack of independence and for a conflict of interest is affirmed.
¶ 63 In Okla. Sup. Court No. 111,961 the Berryhills brought an original action seeking "emergency relief" by mandamus to compel (1) the guardian "to submit a proper report and accounting;" (2) the trial court to hold "a proper guardianship hearing;" and (3) the trial court to remove guardian Mansfield, and to dismiss the agent of guardian Mansfield, and to remove its protective order which restricted access to the Berrys by their relatives. The request for "emergency relief" was filed in this Court in July 2013 complaining of Judge Glassco's order filed in September 2011, and certain conditions of the guardianship that allegedly resulted from this order and subsequent proceedings in the trial court.
¶ 64 In Okla. Sup. Court No. 111,492, the Berryhills and nominated counsel jointly objected to restrictions imposed by the trial court's order with respect to visitations from family, and argue that the guardian improperly
¶ 65 On the claim that the guardian had impermissibly shifted responsibility of making decisions to his agent, the healthcare manager for the Berrys, Susan Boyd, her testimony was that she notified the guardian concerning all visitation requests and she did not make any decisions on her own concerning the Berrys. She did testify that she employed others to provide healthcare for the Berrys.
¶ 66 There is no doubt that Boyd described herself as "agent for the guardian,"
¶ 67 The argument that Select Life Management improperly profited from Boyd's initial assessment is not well developed and contains no authority.
¶ 68 The trial court held a hearing six days after the Berryhills filed their motion in the trial court to vacate the guardian's report, to lift the visitation and telephone restrictions, and remove the guardian and the guardian's agent. David Berry, James Berryhill, and Susan Boyd, the health care manager and agent for the guardian testified. The trial court granted the Berryhills' motion to vacate the annual report and accounting. Because the trial court vacated its order approving the guardian's accounting, a review of that portion of the order and the accounting itself is not properly before us in No. 111,961 for extraordinary writ review.
¶ 69 David Berry testified he must contact his parents' health care manager, or "agent for Guardian," Susan Boyd, when he wants to visit his parents. He testified that she checks with the guardian, Mansfield, "to make certain that I can get a visitation in." He stated he is allowed to visit "[n]ormally anytime I've contacted the agent of the guardian, Susan Boyd." He also testified his visits are supervised and he is limited to two hours. He stated health care workers are present and that they take notes of his visit. He testified he is not allowed to take his parents outside the home, and he is not allowed to spend a night in the home. He testified he heard a "click" upon conclusion of his telephone calls to his parents and concluded they were being heard and monitored by the caregivers. He also testified he made phone calls to his parents when he could have sounded inebriated. The Guardian stipulated that David Berry's "input is not taken into account when considering a plan for care of the wards." Tr. June 24, at 12.
¶ 70 James Berryhill testified that when he wanted to visit the Berrys he has to go through his counsel who then notifies either Susan Boyd or the guardian. He testified his visits are restricted to either 8 or 9 AM to 5 PM, Monday through Friday. He testified his visits are restricted to an one and 1/2 hours, except for twice he was allowed a two-hour visit. He testified he is not allowed to telephone the Berrys except when permission has been granted by the guardian or the agent for the guardian. He testified Daughtrey called him twice. He also testified Daughtrey told him that she was able to call him after a healthcare worker had left the cordless phone with her after she finished a call with David or with her brother. He also stated he was denied an opportunity to take the Berrys to dinner. The guardian stipulated there was no agreement with the Berryhills for them to have less restrictive visitations with the Berrys.
¶ 71 The guardian stated that Mr. Berryhill is permitted to telephone the Berrys. The guardian then stated the following.
Tr. at 31.
James Berryhill then stated "That isn't the situation." He then testified that his telephone calls are being blocked and that it was "not emotionally healthy" for the Berrys because he has been in close communication with them for over 50 years.
¶ 72 Susan Boyd testified. She testified she oversees the Berrys' health. She attends all of their appointments with doctors. In a previous hearing she testified she is an R.N. and a member of, and certified by, the National Association of Professional Geriatric Care Managers.
¶ 73 Boyd testified David Berry's phone calls and visitations have not been restricted. She testified that the Berrys may telephone whoever they want whenever they wish. Tr. at 40. She testified the Berryhills have contacted her concerning many visitations and that they had cancelled approximately 35-40% of the visitations. She testified that when the Berryhills email her concerning a visit she confirms there is a supervisor available, lets the guardian know of the request for a visit, and then the guardian confirms the request. The supervisor who is present is a nurse. She testified the director of nursing at Senior Select, a nursing agency, decided that a supervising nurse was necessary during visits from the Berryhills because visits by the Berryhills had "agitated the Wards" when the Berryhills would discuss the topics of the guardianship, other relatives, and money. Tr. at 47-48. She testified the nurse sent by the nursing agency for the Berryhills' visits is one who is more experienced in handling conflict situations. Tr. at 51. She testified the nursing agency sent the nurses with permission of the guardian.
¶ 74 Counsel for the Berryhills then made an offer of proof for portions of a deposition he desired to enter into evidence. The deposition of the healthcare worker is that there is no "healthcare plan in place ... no cognitive plan in place" for the Berrys that the healthcare worker was aware of. Counsel for the Berryhills then rested. Counsel argued that supervised visitation was not proper and "we ask the court to recognize that this constitutes an emergency and that some further direction be given to establish that Mr. Berryhill — that the Berrys are entitled not to have a healthcare worker taking notes of all their conversations and listening to their personal conversations with their loved ones.... [and] there's no need for an additional nurse supervisor to be there." Opposing counsel argued that the procedures in place were to protect the Berrys.
¶ 75 The court then explained:
June 24, 2013, Tr. at 59-61 (material omitted).
The trial judge also stated that she would not create a schedule to force the Berrys to telephone the Berryhills because the Berrys "should be permitted to choose whom they wish to call, whom they wish to see, whom they wish to visit with, and their wishes should be honored." Tr. at 61-62. The trial judge then stated that she was vacating the order which approved the guardian's accounting because an objection had been filed and a hearing on the objection had been scheduled.
¶ 76 The trial court ruled that the Berrys "should be permitted to choose whom they wish to call, whom they wish to see, whom they wish to visit with, and their wishes should be honored." The testimony was that the supervising nurse present during the visits from James Berryhill was there because of a medical decision based upon agitation routinely caused by the visits. There was no testimony to the contrary offered by the Berryhills. Indeed, it appears that the testimony at the hearing was newly-revealed information to the Berryhills that the decision for the presence of a supervising nurse had originated from the nursing service in response to the Berrys' agitation instead of a directive originally from the guardian or Boyd. The Berryhills offered no testimony from any healthcare worker in the Berrys' home that they had been directed by the guardian or Boyd to shield the Berrys from all phone calls to them from the Berryhills.
¶ 77 When prohibition or mandamus is used in those limited circumstances to control a trial court's exercise of discretion, the petitioner must show that the trial court exceeded its authority or discretion in the order that the party is challenging by an extraordinary writ.
¶ 78 The supervised visitation of the Berryhills appears to have been created from medical necessity to combat agitation caused from their visitations and the previous contact between the Berrys and the Berryhills which resulted in the Berrys' funds being placed in Anita Berryhill's bank account. The trial court specifically mentioned the absence of testimony before her from members of the nursing staff who observed the agitation and the amelioration of that agitation by a supervising nurse when the Berryhills visited. She did have testimony from Boyd who received reports from the nursing service and the need for the presence of a supervising nurse during the Berryhills' visits. Again, we find no abuse of discretion on the part of the trial court in adjudicating the Berryhills' emergency motion that would warrant extraordinary relief by mandamus or prohibition.
¶ 79 The Berryhills and nominated counsel argue that the protective order issued by Judge Otey should be set aside and the Berryhills be allowed to visit unsupervised. Judge Otey stated that her order was temporary to maintain the status quo until Judge Bitting could hear the matter. The restrictions on the visits by the Berryhills are present because of Judge Otey's order, but as a result of Judge Bitting's decision after hearing testimony. We decline to change the trial court's restrictions on the Berryhills' visits based upon their claims that the evidence was insufficient before Judge Otey for imposition of restrictions on visitation.
¶ 80 The Berryhills' claim to be named guardians is not before us in this proceeding. The nominations by Foster and Daughtrey were dated on October 21, 2011, and the nominations were attached to the petition filed in the District Court that same date by the Berryhills seeking a guardianship with Baker and Wyers as counsel for the Berryhills. The trial court record appears
¶ 81 At the hearing of May 30, 2012, counsel for James and Anita Berryhill argued that a Holly hearing on nominated counsel should not be held because "we have no findings of incapacity" as to the Berrys. Tr. at 8. One counsel formerly representing the Berryhills stated that he did not "sign off" on the order appointing a general guardian and that the Berryhills' petition to be named guardians remained pending. The trial judge then informed counsel that at a previous hearing she had heard testimony and made an appointment of a general guardian based upon that testimony. She informed counsel that "if you do not like the determination that was made, of course, you have a right to appeal." Id. at 9. The trial judge and various counsel then had a discussion of what they remembered, specifically what they remembered concerning whether the petitions for guardianship by Jan and the Berryhills remained pending for future consideration after the appointment of Mansfield. The trial court then stated:
May 30, 2012, Tr. at 21.
The trial court instructed the parties to file a motion bringing their claims of pending petitions for guardianship before the judicial cognizance of the trial court to adjudicate. The clerk's docket shows an entry for a petition to remove guardian and for appointment of successor co-guardians filed on July 9, 2012, with an amended petition filed July 11, 2012. An answer was filed July 30, 2012, and a reply on August 17, 2012.
¶ 82 In their briefs filed in this Court in No. 111,492,
¶ 83 Nominated counsel and the Berryhills argue that the evidence of the Berrys' mental capacities was absent or insufficient to authorize either a special guardianship in September 2011, or the subsequent order appointing a general guardian in October 2011 (filed Nov. 3, 2011).
¶ 84 As noted herein, the trial judge stated that she heard from Daughtrey at the hearing which resulted in the appointment of a general guardian. This challenge by nominated attorneys and the Berryhills appears to raise the general issues of (1) the required nature of evidence necessary at a hearing that adjudicates incapacity and appoints either a special or general guardian, (2) whether the nature of this evidence is in any way dependent upon the nature of the incapacity which is alleged, and (3) whether the evidence must be preserved in the trial court record by, for example, a transcript with exhibits, even if no party requested
¶ 85 Again, at a hearing held in May of 2012, the trial judge, on the record, specifically requested that the parties file motions raising whatever issues counsel believed remained pending and needed an adjudication. Absent exigent and unusual circumstances, in the context of an original supervisory writ this Court does not make first-instance assessments in applying legal principles to facts, but allows the parties to develop issues of fact and law in the trial court.
¶ 86 In No. 112,753, the Berryhills and David Berry seek an extraordinary writ to review an order of the trial court which quashed their subpoenas duces tecum that were issued to "various banking and financial institutions, including subpoenas related to the Ward's trust accounts."
¶ 87 In Russell, we explained that the guardianship statutes must be construed to accommodate a durable power of attorney, and a guardianship does not automatically terminate a durable power of attorney.
Russell, 2009 OK 22, ¶ 18, 212 P.3d at 1184 (note omitted).
By statute, a report of the guardian "shall contain a complete financial statement of the financial resources of the ward under the control and supervision of the guardian or limited guardian ... [and] shall contain an accounting of any receipts and disbursements received, or expenditures made by the guardian... on behalf of the ward." 30 O.S.2011 § 4-306(E)(1) and (2) (material omitted). A guardianship court exercises jurisdiction over the attorney-in-fact by a guardian submitting the required financial information and this financial information includes expenditures made by an attorney-in-fact under the guardian's supervision.
¶ 88 The Berryhills and David Berry assert that the guardian has not filed the required financial information and no report has been filed showing any expenditures from Daughtrey's trust, although all of her living expenses are to be paid from the trust. The confidentiality of every trust provision is not negated by a guardian's duty to file a financial report. However, a guardian may not decline to account for expenditures made on behalf of the ward by a trustee. Both the financial resources of the ward and expenses of the ward must be reported in a guardian's report. 30 O.S.2011 § 4-306(E)(1) & (2).
¶ 89 Discovery promotes the ascertainment of the truth and ultimate disposition of a legal proceeding,
¶ 90 The record before us shows an objection to certain individuals having access to financial information from the ward's trust. Parties in a guardianship, including those who are given the statutory right to object to a guardian's report, have a right to engage in discovery to be afforded an opportunity for a full and fair adjudication of their objection to a guardian's report. Generally, we have explained that a party objecting to discovery must file an objection to the discovery and seek protection from the discovery request.
¶ 91 We affirm that part of the trial court's order which held the nominated firm of Baker and Wyers to have a conflict and to be not independent. We assume original jurisdiction on the other claims, and decline to issue writs of mandamus and prohibition with the sole exception of the trial court quashing subpoenas.
¶ 92 We issue prohibition with directions to the trial court to hold a hearing on the motion to quash the subpoenas and determine whether the information is being sought by a proper party to the guardianship and whether an objection to discovery is proper pursuant to the Discovery Code or some other provision of law. We hold that a guardianship court possesses jurisdiction to issue a subpoena duces tecum to a trustee of a ward expending funds on behalf of that ward when those expenditures are statutorily required to be in a guardian's report, and those seeking the information are statutorily authorized to object to the guardian's report.
¶ 93 ALL JUSTICES CONCUR.
A final order is "An order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding or upon a summary application in an action after judgment, is a final order, which may be vacated, modified or reversed, as provided in this article." 12 O.S.2011 § 953.
See 12 O.S.2011 § 990A(A) which states in part that: "A. An appeal to the Supreme Court of Oklahoma, if taken, must be commenced by filing a petition in error with the Clerk of the Supreme Court of Oklahoma within thirty (30) days from the date a judgment, decree, or appealable order prepared in conformance with Section 696.3 of this title is filed with the clerk of the trial court."
Conflict of interest: current clients
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
This Court does not issue advisory opinions or answer hypothetical questions, and we do not make first-instance assessments applying legal principles to facts, but allow the parties to develop issues of fact and law in the District Court. Scott v. Peterson, 2005 OK 84, ¶ 27, 126 P.3d 1232, 1239-1240.
